Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-34915

June 24, 1983

CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon City, Branch
XVIII; HIMLAYANG PILIPINO, INC., respondents.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of First Instance of
Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null
and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE ESTABLISHMENT,
MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN
THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF"
provides:
Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside for
charity burial of deceased persons who are paupers and have been residents of Quezon City for at
least 5 years prior to their death, to be determined by competent City Authorities. The area so
designated shall immediately be developed and should be open for operation not later than six
months from the date of approval of the application.
For several years, the aforequoted section of the Ordinance was not enforced by city authorities but
seven years after the enactment of the ordinance, the Quezon City Council passed the following
resolution:
RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City
Engineer, Quezon City, to stop any further selling and/or transaction of memorial park lots in Quezon
City where the owners thereof have failed to donate the required 6% space intended for paupers
burial.
Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in
writing that Section 9 of Ordinance No. 6118, S-64 would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII at
Quezon City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction
(Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in question The respondent
alleged that the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy
Act, and the Revised Administrative Code.

There being no issue of fact and the questions raised being purely legal both petitioners and
respondent agreed to the rendition of a judgment on the pleadings. The respondent court, therefore,
rendered the decision declaring Section 9 of Ordinance No. 6118, S-64 null and void.
A motion for reconsideration having been denied, the City Government and City Council filed the
instant petition.
Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of
police power and that the land is taken for a public use as it is intended for the burial ground of
paupers. They further argue that the Quezon City Council is authorized under its charter, in the
exercise of local police power, " to make such further ordinances and resolutions not repugnant to
law as may be necessary to carry into effect and discharge the powers and duties conferred by this
Act and such as it shall deem necessary and proper to provide for the health and safety, promote
the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the
inhabitants thereof, and for the protection of property therein."
On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of
property is obvious because the questioned ordinance permanently restricts the use of the property
such that it cannot be used for any reasonable purpose and deprives the owner of all beneficial use
of his property.
The respondent also stresses that the general welfare clause is not available as a source of power for
the taking of the property in this case because it refers to "the power of promoting the public welfare
by restraining and regulating the use of liberty and property." The respondent points out that if an
owner is deprived of his property outright under the State's police power, the property is generally not
taken for public use but is urgently and summarily destroyed in order to promote the general welfare.
The respondent cites the case of a nuisance per se or the destruction of a house to prevent the
spread of a conflagration.
We find the stand of the private respondent as well as the decision of the respondent Judge to be
well-founded. We quote with approval the lower court's ruling which declared null and void Section 9
of the questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power?
An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that
would justify the ordinance in question except the provision granting police power to the City.
Section 9 cannot be justified under the power granted to Quezon City to tax, fix the license fee, and
regulate such other business, trades, and occupation as may be established or practised in the City.'
(Subsections 'C', Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 PhiL 33, Vega
vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to
regulate does not include the power to confiscate. The ordinance in question not only confiscates
but also prohibits the operation of a memorial park cemetery, because under Section 13 of said
ordinance, 'Violation of the provision thereof is punishable with a fine and/or imprisonment and that
upon conviction thereof the permit to operate and maintain a private cemetery shall be revoked or
cancelled.' The confiscatory clause and the penal provision in effect deter one from operating a
memorial park cemetery. Neither can the ordinance in question be justified under sub- section "t",
Section 12 of Republic Act 537 which authorizes the City Council to-

'prohibit the burial of the dead within the center of population of the city and provide for their burial
in such proper place and in such manner as the council may determine, subject to the provisions of
the general law regulating burial grounds and cemeteries and governing funerals and disposal of the
dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537).
There is nothing in the above provision which authorizes confiscation or as euphemistically termed by
the respondents, 'donation'
We now come to the question whether or not Section 9 of the ordinance in question is a valid
exercise of police power. The police power of Quezon City is defined in sub-section 00, Sec. 12, Rep.
Act 537 which reads as follows:
(00) To make such further ordinance and regulations not repugnant to law as may be necessary to
carry into effect and discharge the powers and duties conferred by this act and such as it shall deem
necessary and proper to provide for the health and safety, promote, the prosperity, improve the
morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and
for the protection of property therein; and enforce obedience thereto with such lawful fines or
penalties as the City Council may prescribe under the provisions of subsection (jj) of this section.
We start the discussion with a restatement of certain basic principles. Occupying the forefront in the
bill of rights is the provision which states that 'no person shall be deprived of life, liberty or property
without due process of law' (Art. Ill, Section 1 subparagraph 1, Constitution).
On the other hand, there are three inherent powers of government by which the state interferes with
the property rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are said to
exist independently of the Constitution as necessary attributes of sovereignty.
Police power is defined by Freund as 'the power of promoting the public welfare by restraining and
regulating the use of liberty and property' (Quoted in Political Law by Tanada and Carreon, V-11, p.
50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner. If
he is deprived of his property outright, it is not taken for public use but rather to destroy in order to
promote the general welfare. In police power, the owner does not recover from the government for
injury sustained in consequence thereof (12 C.J. 623). It has been said that police power is the most
essential of government powers, at times the most insistent, and always one of the least limitable of
the powers of government (Ruby vs. Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995, May
31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 PhiL
104). The Supreme Court has said that police power is so far-reaching in scope that it has almost
become impossible to limit its sweep. As it derives its existence from the very existence of the state
itself, it does not need to be expressed or defined in its scope. Being coextensive with selfpreservation and survival itself, it is the most positive and active of all governmental processes, the
most essential insistent and illimitable Especially it is so under the modern democratic framework
where the demands of society and nations have multiplied to almost unimaginable proportions. The
field and scope of police power have become almost boundless, just as the fields of public interest
and public welfare have become almost all embracing and have transcended human foresight.
Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot
delimit beforehand the extent or scope of the police power by which and through which the state
seeks to attain or achieve public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).
The police power being the most active power of the government and the due process clause being
the broadest station on governmental power, the conflict between this power of government and
the due process clause of the Constitution is oftentimes inevitable.

It will be seen from the foregoing authorities that police power is usually exercised in the form of mere
regulation or restriction in the use of liberty or property for the promotion of the general welfare. It
does not involve the taking or confiscation of property with the exception of a few cases where there
is a necessity to confiscate private property in order to destroy it for the purpose of protecting the
peace and order and of promoting the general welfare as for instance, the confiscation of an
illegally possessed article, such as opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere
police regulation but an outright confiscation. It deprives a person of his private property without due
process of law, nay, even without compensation.
In sustaining the decision of the respondent court, we are not unmindful of the heavy burden
shouldered by whoever challenges the validity of duly enacted legislation whether national or local
As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve every
presumption in favor of validity and, more so, where the ma corporation asserts that the ordinance
was enacted to promote the common good and general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of
Manila (20 SCRA 849) the Court speaking through the then Associate Justice and now Chief Justice
Enrique M. Fernando stated
Primarily what calls for a reversal of such a decision is the a of any evidence to offset the presumption
of validity that attaches to a statute or ordinance. As was expressed categorically by Justice
Malcolm 'The presumption is all in favor of validity. ... The action of the elected representatives of the
people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with
the necessities of their particular ... municipality and with all the facts and lances which surround the
subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect
given notice that the regulations are essential to the well-being of the people. ... The Judiciary should
not lightly set aside legislative action when there is not a clear invasion of personal or property rights
under the guise of police regulation. (U.S. v. Salaveria (1918], 39 Phil. 102, at p. 111. There was an
affirmation of the presumption of validity of municipal ordinance as announced in the leading
Salaveria decision in Ebona v. Daet, [1950]85 Phil. 369.)
We have likewise considered the principles earlier stated in Case v. Board of Health supra :
... Under the provisions of municipal charters which are known as the general welfare clauses, a city,
by virtue of its police power, may adopt ordinances to the peace, safety, health, morals and the best
and highest interests of the municipality. It is a well-settled principle, growing out of the nature of wellordered and society, that every holder of property, however absolute and may be his title, holds it
under the implied liability that his use of it shall not be injurious to the equal enjoyment of others
having an equal right to the enjoyment of their property, nor injurious to the rights of the community.
An property in the state is held subject to its general regulations, which are necessary to the common
good and general welfare. Rights of property, like all other social and conventional rights, are subject
to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to
such reasonable restraints and regulations, established by law, as the legislature, under the governing
and controlling power vested in them by the constitution, may think necessary and expedient. The
state, under the police power, is possessed with plenary power to deal with all matters relating to the
general health, morals, and safety of the people, so long as it does not contravene any positive
inhibition of the organic law and providing that such power is not exercised in such a manner as to
justify the interference of the courts to prevent positive wrong and oppression.
but find them not applicable to the facts of this case.

There is no reasonable relation between the setting aside of at least six (6) percent of the total area
of an private cemeteries for charity burial grounds of deceased paupers and the promotion of
health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a
taking without compensation of a certain area from a private cemetery to benefit paupers who are
charges of the municipal corporation. Instead of building or maintaining a public cemetery for this
purpose, the city passes the burden to private cemeteries.
The expropriation without compensation of a portion of private cemeteries is not covered by Section
12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to
prohibit the burial of the dead within the center of population of the city and to provide for their
burial in a proper place subject to the provisions of general law regulating burial grounds and
cemeteries. When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q)
that a Sangguniang panlungsod may "provide for the burial of the dead in such place and in such
manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned
land or to buy or expropriate private properties to construct public cemeteries. This has been the law
and practise in the past. It continues to the present. Expropriation, however, requires payment of just
compensation. The questioned ordinance is different from laws and regulations requiring owners of
subdivisions to set aside certain areas for streets, parks, playgrounds, and other public facilities from
the land they sell to buyers of subdivision lots. The necessities of public safety, health, and
convenience are very clear from said requirements which are intended to insure the development of
communities with salubrious and wholesome environments. The beneficiaries of the regulation, in
turn, are made to pay by the subdivision developer when individual lots are sold to home-owners.
As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of
the municipal corporation, not on any express provision of law as statutory basis of their exercise of
power. The clause has always received broad and liberal interpretation but we cannot stretch it to
cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang
Pilipino, Inc. had incorporated. received necessary licenses and permits and commenced operating.
The sequestration of six percent of the cemetery cannot even be considered as having been
impliedly acknowledged by the private respondent when it accepted the permits to commence
operations.
WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is
affirmed.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.